About Me

Known principally for his weekly political columns and his commentaries on radio and television, Chris Trotter has spent most of his adult life either engaging in or writing about politics. He was the founding editor of The New Zealand Political Review (1992-2005) and in 2007 authored No Left Turn, a political history of New Zealand. Living in Auckland with his wife and daughter, Chris describes himself as an “Old New Zealander” – i.e. someone who remembers what the country was like before Rogernomics. He has created this blog as an archive for his published work and an outlet for his more elegiac musings. It takes its name from Bowalley Road, which runs past the North Otago farm where he spent the first nine years of his life. Enjoy.

Bowalley Road Rules

The blogosphere tends to be a very noisy, and all-too-often a very abusive, place. I intend Bowalley Road to be a much quieter, and certainly a more respectful, place.So, if you wish your comments to survive the moderation process, you will have to follow the Bowalley Road Rules.These are based on two very simple principles:Courtesy and Respect.Comments which are defamatory, vituperative, snide or hurtful will be removed, and the commentators responsible permanently banned.Anonymous comments will not be published. Real names are preferred. If this is not possible, however, commentators are asked to use a consistent pseudonym.Comments which are thoughtful, witty, creative and stimulating will be most welcome, becoming a permanent part of the Bowalley Road discourse.However, I do add this warning. If the blog seems in danger of being over-run by the usual far-Right suspects, I reserve the right to simply disable the Comments function, and will keep it that way until the perpetrators find somewhere more appropriate to vent their collective spleen.

Followers

Thursday, 8 September 2011

The Operation That Failed

Vales of Secrecy: What the Urewera "campers" were doing up there in the bush, and to what end, seems destined to remain hidden behind the mountains' swirling mist.

IT IS WITH genuine reluctance that I once again broach the subject of the Urewera 17. Not only is the legal process still in play, but such is the intensity of emotion surrounding this case that it has become practically impossible for those holding opposing views to engage in calm and rational debate.

But, the Crown’s decision to abandon its prosecution of 13 of the 17 persons accused of firearm’s offences, and the spin applied to that decision on the part of the accused’s legal counsel and supporters, has made some sort of response to the Defence’s version of events inevitable.

Hampering a clear elucidation of the issues by both sides is the continuing suppression of the Supreme Court’s judgement as to the inadmissibility or otherwise of much of the Crown’s evidence. A simple exercise in deduction, however, would suggest that the justices’ decision pertains to the considerable body of evidential material gathered under the Terrorism Suppression Act and whether the crown is entitled to make use of that evidence when prosecuting persons under another statute, in this case the Arms Act.

From what the Prosecution has already placed on the public record, it is relatively straightforward to deduce that the Supreme Court has denied the Crown the use of this evidence, thereby making a successful prosecution of those individuals charged with arms offences alone highly unlikely.

The Supreme Court’s decision highlights (and not for the first time in this case) the many and serious inadequacies of the Terrorism Suppression Act. From the very beginning of “Operation Eight” the TSA’s shortcomings have led the forces of the State from one misjudgement to another. These misjudgements have, in turn, provided those organising the defence of those arrested with a public relations bonanza, which they have exploited ruthlessly – and with considerable success.

From the moment in 2006 when two hunters stumbled on to what they told the Police looked like some sort of military training camp, the ill-fated “Operation Eight” became inevitable. With knowledge of the Urewera activity “out there” in the possession of civilians, there was the ever-present risk of it finding its way into the news media (which is what did, eventually, happen).

Astonished hunters aside, it is probable that the Police were already aware that something was up in Tuhoe country. Information about the “military training camp/s” could have come to them from at least two other sources.

The first, and most likely, institutional source would have been the Police Strategic Intelligence Unit (PSIU) which had (following its establishment in 2002, and taking a leaf out of the US and UK intelligence playbook) been running a number of spies and informants in the radical anti-war, anti-mining and Maori nationalist movements. It is probable that at least one of these informants attended the very first gathering of the radical clans in Tuhoe country and reported its proceedings back to their controller/s in the PSIU.

The other probable source is the Security Intelligence Service (SIS) which, like the PSIU, maintains a watching brief on radical individuals and organisations – especially those whose activities impinge even slightly on matters relating to the so-called “Global War on Terror”.

Both agencies would have immediately reported the Urewera activities to their bosses: the PSIU to the Commissioner of Police, Howard Broad; and SIS agents to the Service’s then Director, Richard Woods. These two gentlemen shared membership of a number of committees and groups pertaining to national security. Both belonged to “ODESC” – the Officials Committee for Domestic and External Security Co-ordination – which reports directly to the Cabinet Committee on Domestic & External Security, chaired by the Prime Minister. Broad and Woods were also members of “CTAG” – the Combined Threat Assessment Group – alongside representatives from the New Zealand Defence Force.

From the outset, therefore, it is highly probable that the activity taking place in the Ureweras was viewed almost exclusively through the prism of national security and subjected to the same kind of threat assessment which, in other jurisdictions, is regularly applied to suspected terrorist activity. In such circumstances it is simply inconceivable that the then Prime Minister, Helen Clark, and her Cabinet Committee on Domestic & External Security were not kept fully briefed on developments.

It is also highly likely that Police Commissioner Broad, aware that the eyes of the nation’s national security apparatus were on him, had no alternative except to hand over responsibility for keeping the Urewera campers under close surveillance to his responsible subordinate officer, Assistant Police Commissioner for National Security, Jon White.

According to the investigative journalist, Nicky Hager, White had a reputation among the activist community for heavy-handedness, and was seen as one of the drivers of what many radicals regarded as a rising level of authoritarian and anti-democratic policing in New Zealand. White had also attended a number of anti-terrorist seminars in the United States and the United Kingdom. He was, in short, a “hard-ass”.

When “Operation Eight” was finally launched on 15 October 2007 the images it supplied – of armed police officers, clad all in black, masked, helmeted and wearing Kevlar body-armour – provided the accused’s defence team with all the images of state repression they could use. White’s deployment of his men in and around the tiny Tuhoe settlement of Ruatoki carried an equally potent reminder of the tragic history of the Crown’s interaction with the Tuhoe people. That White either did not know – or simply didn’t care – that he was re-enacting scenes from the Iwi’s troubled past, was, from a strategic point of view, fatal. The propaganda war was lost by the Police on Day One.

Losing the legal war would take a little longer.

Given the national security environment in which he found himself enmeshed, Broad had little option but to rely on the Terrorism Suppression Act (2002) as the legal foundation of the Police operation. In this he was aided by Crown Law, which continually reassured him and White that the appallingly drafted piece of legislation, hurriedly cobbled together in the wake of the 9/11 attacks, was fit for purpose.

It was not.

When the Solicitor-General, David Collins, announced that, contrary to the advice given to Police by lawyers in the Crown Law Office, it would not be possible to charge those arrested in “Operation Eight” with offences under the TSA, the Police were left in an untenable position.

After twelve months of surveillance, during which the campers’ “training” had allegedly familiarised them with weapons and techniques of increasing sophistication and lethality, and the anxiety of the watchers had steadily mounted, Broad and his colleagues had been left with no choice but to act. Now, having acted, they’d been informed by no less a person than the Solicitor-General that the entire operation had been erected on the legal equivalent of quicksand.

For the Defence it was now open season. Not content with winning the propaganda war, they proceeded to launch a full-scale legal assault upon the evidentiary basis of the Crown’s alternative charges. What followed was a legal war of attrition, ascending through the High Court, the Court of Appeal, all the way to New Zealand’s highest seat of judgement – the Supreme Court.

Following the judgement of the Supreme Court, only four defendants remain in the Crown’s prosecutorial sights. Tame Iti, Te Rangikaiwhiria Kemara, Emily Bailey and Urs Signer are charged with participation in an organized criminal group under s98A Crimes Act and unlawful possession of firearms and restricted weapons under s45 Arms Act.

According to the Crown Solicitor, S J Eisdell Moore:

“As a consequence of the Supreme Court decision, it would have been necessary for those charged solely under the Arms Act to have been tried separately to those charged under both Acts. It would not be practical for any such trials to proceed prior to the main trial in February, and were any such trials to proceed after the main trial, then the main trial would need to be the subject of wide ranging suppression orders.

The effect of the delay would be that those accused facing Arms Act charges alone would not be tried for a period of at least four and a half years from the date of their arrest. Further, they were remanded in custody for a period of time following their arrest, and they have been on restrictive bail conditions through much of the time since their release. Taking these matters into account together with findings made by the Supreme Court about the seriousness of their offending, it is the Crown decision that the continuation of proceedings against them would not be in the public interest.”

A “hard-ass” Assistant Police Commissioner’s gross insensitivity to his own country’s history, coupled with his utter failure to understand the key strategic importance of political imagery, lost the propaganda war ignited by “Operation Eight”.

For a Police Commissioner desperately concerned to do the right thing, and the Crown prosecution his decisions set in motion, the problem was an appallingly drafted act of parliament and shoddy legal advice.

For us, the public, these two failures raise the very real possibility that we may never know what those two hunters stumbled into; the PSIU’s spy heard discussed; the SIS interception warrants revealed; and the Police’s listening devices and videos recorded.

New Zealand is one of the world’s oldest democracies: a nation committed to the rule of law. The Urewera 17 (or, at least 13 of them) have escaped prosecution and possible conviction because of that commitment. They have taken full advantage of the presumption of innocence, and have strenuously exercised their right to silence.

What they were doing up there in the bush, and to what end, remains hidden in the swirling Urewera mist.

"A simple exercise in deduction, however, would suggest that the justices’ decision pertains to the considerable body of evidential material gathered under the Terrorism Suppression Act and whether the crown is entitled to make use of that evidence when prosecuting persons under another statute, in this case the Arms Act."

Nice try Chris. But that's not what happened.

If you had read the Supreme Court's decision to hear the argument, you would actually know what was going on. http://www.courtsofnz.govt.nz/cases/omar-hamed-and-others-v-the-queen/at_download/fileDecision

"A “hard-ass” Assistant Police Commissioner’s gross insensitivity to his own country’s history, coupled with his utter failure to understand the key strategic importance of political imagery, lost the propaganda war ignited by “Operation Eight”."......call me hard-ass but if what they were doing is as alleged then they deserve to be met with an iron fist- they are (if we admit the inadmissible evidence) vermin (and they masquerade as peace advocates).

Having read the document you refer to, I cannot see any reason to alter my conclusion re: the Supreme Court's findings.

The question to be decided turned on the admissability of evidence obtained by means of surveillance and search.

It would seem the Defence has been successful in persuading the SC do deliver a pre-trial determination that the evidence so-gained cannot be admitted - thereby destroying the Prosecution's case.

I see no reason to abandon my assumption that the evidence which the Defence wished to see excluded was obtained when the Police were still expecting to lay charges under the Terrorisn Suppression Act.

So, "nice try" yourself.

To: Ministryofjusticenz

Not with you, mate.

"They" - by which I assume you mean the 13 defendants - will not now be required to stand trial for the reasons set forth by the Crown Solicitor.

I read the piece to say something like this. We know they were up to something illegal. They should have been potted by justice, but, because of bad law drafting and poor advice to the Police, to quote a phrase used, "they beat the rap". There are also implications of Defence lawyer excess (on behalf of clients who were arrested but then not taken through legal proceedings?)and just a tiny hint of criticism of the Supreme Court (but I'll happily retract that is I have stretched the interpretation).

My response is, first, that we don't "know" anything of the sort. People can surmise what they like, depending on their preferences and their access to (partial, in both senses) material,but, because of suppression, we can't know. Even then when considering information from the apparatus of the state, "knowing" is problematic. Second, and I remain to be convinced that this is not trivial or wrong, the presumption of innocence is important. They were charged, but the charges did not stack up. There was nothing unfair or outside the rules of the game here. They are innocent until proved guilty. It's not a bad rule to apply in general, and I hope that it would be applied here.

A lot of the prosecution's evidence was released through the Dominion Post, and an informed observer might legitimately conclude from that evidence that that the case is probably trivial, and likely to result in acquittal at any jury trial.

I've reached the point in life where memory is fallible but I distinctly recall rather more than 17 people being caught up in the dragnet in the Ureweras, including some terrified children and elderly people.

I also have a vague memory of talks at around that time between our government and the Bush administration over our participation in the "War on Terror".

I would like to think otherwise, but I can't wholly shrug off the suspicion that the crackdown was motivated by a desire to show how staunch we were in rounding up our own puny equivalent of Al Qaeda.

I might be wholly mistaken but it did all seem to me like a case of (to use the gallant Captain Renault's celebrated phrase): "Round up the usual suspects".

Interestingly, measures quite so draconian are never, to the best of my knowledge, used against patched gangs,'Killer Bees', p-lab operators, triads or any other part of our rather threatening urban criminal culture.

So, surely, if there was something going on in those misty valleys that constituted a public danger sufficient to justify such untypically harsh methods, we have a right to know in detail what that something was.

Well Chris, if you don't know how to interpret the document I gave you the link for you just need to wait for suppression orders to be lifted. But the document states clearly that:

"The approved grounds are whether the challenged evidence was lawfully obtained under s 198 of the Summary Proceedings Act 1957 or was, alternatively, properly admissible pursuant to s 30 of the Evidence Act 2006."

That's it. While the arguement was around search and surveillance, it had nothing to do with the TSA. Nothing around s312 Crimes Act surveillance/bugging.

s198 of the SPA is here: http://www.legislation.govt.nz/act/public/1957/0087/latest/DLM314010.html?search=ts_act_Summary+Proceedings+Act_resel&p=1#DLM314010

"For the Defence it was now open season. Not content with winning the propaganda war, they proceeded to launch a full-scale legal assault upon the evidentiary basis of the Crown’s alternative charges. What followed was a legal war of attrition, ascending through the High Court, the Court of Appeal, all the way to New Zealand’s highest seat of judgement – the Supreme Court".

I usaully repect your analysis, Chris, but you lost it with the above paragraph. Are you trying to say that the handful of legal aid lawyers that the Urewera accused managed to scramble together waged a legal war of attrition against the Crown? You can’t be referring to the legal aid lawyers from Aurere Law who specialise in Maori land law – not criminal law. You cannot be referring to the barrister-soles who represented some of the accused? The accused were represented in Court by one barrister, yes, one barrister. On the other hand the Crown had the luxury of a junior and senior counsel (not to mention an army of researchers, assistant counsel and - most importantly - money). Are you suggesting that the rag-tag, dirt poor bunch of defendants managed to outlast the Crown? All of the work Counsel for the accused undertook was either covered by legal aid or pro bono. Legal battles take money and man-power. Do you really think the accused had money and man-power? Crown Law is as well-equipped as our top firms with access to the best legal minds and a budget you would expect to see at Russell McVeagh. Counsel for the defendants, however, were mostly sympathetic lawyers from a number of different firms. There was little coordination, little sharing of information and resources and, ultimately, little money. These lawyers could not wage a war of attrition because they were, more often than not, working as individuals. Meanwhile Crown Law was acting as a coherent legal machine with time, money and lawyers on their hands.

The Defence strategy was the product of some of the best legal minds in the country - a group including, but not restricted to, Professor Jane Kelsey, Moana Jackson and Annette Sykes.

It was this group that ensured the propaganda war was in full swing less than 24-hours after the first arrests; and they waged it with ruthless efficiency.

Simply because some of the defendants' lawyers may not have been in the same financial league as a Russell Fairbrother doesn't mean they were ineffective.

The Crown's team may have been recruited from some of the big firms, but up against the collective responsible for directing the broad Defence strategy - a group which was mostly, but not wholly, made up of the legal representatives of the accused - they were were at a severe disadvantage.

Overwhelmingly, the battle waged on behalf of the Urewera 17, and against the State, was political. And on this field the Defence team and their advisors comprehensively out-thought and out-fought the Crown.

The military people even have a name for the strategy and tactics adopted by the Defence: they call it "asymmetrical warfare".

You say: "From what the Prosecution has already placed on the public record, it is relatively straightforward to deduce that the Supreme Court has denied the Crown the use of this evidence, thereby making a successful prosecution of those individuals charged with arms offences alone highly unlikely."

That's not strictly correct. Simon Moore said that it was "not in the public interest" to continue with the arms charges in regards to various accused. He didn't say there was a lack of evidence.

Mr Trotter, I would like to ask your opinion, since you are so ready to tell us about the evils of so called training camps in Te Urewera, on the camps held by Survive club http://www.surviveclub.org.nz/. Survive Camps are run by the radical Kyle Chapman and some of his mates. Can you perhaps legitimise the double standard of the NZ police in going after possible Maori terror suspects when acknowledged radical and highly political right wing activists are holding camps of the nature alleged by the police. Kyle is now the head of RIghtwing resistance. http://rwrnz.blogspot.com/ Dont tell me there wasnt more of an agenda behind the raids than has been said.

First, that 'one legal aid barrister' who represented them happens to be Rodney Harrison QC. Dr Harrison has now appeared in 12 substantive Supreme Court cases and won every single one of them. Yes, he is now 12/12 in the Supreme Court. With a record like that he is undoubtedly NZ's most formidable appellate lawyer - Crown or defence.

I assume that he stepped in to act for them to provide them with some equality of arms in the struggle against the unlimited resources of the Crown Law Office.

Secondly, the Supreme Court decision had nothing at all to do with the TSA as the leave judgment confirms.

Lastly, Evidence can only be excluded if, under section 30 of the Evidence Act, the exclusion of the evidence would not be out of proportion with the Police impropriety, so I guess we can assume from that legislation that the Police impropriety here was pretty serious.

I wonder why the Police didn't wait until another camp was underway and - as well as the raid they performed - arrest a group in the act, in possession of weapons that presumably included illegal and illegally modified items.

I don't think that is what the Leave Judgement says at all. In fact, by my reading, it says the opposite. The evidence in question was deemed by the lower courts to be of sufficient importance to over-ride any improprieties attendant upon its collection.

What I do think, however, is that the people who keep assuring us that the SC's judgement had nothing whatsoever to do with the TSA should front-up and tell us what it DOES relate to.

You all seem so very sure of yourselves on this point, so, come on, enlighten the rest of us!

As is evident from the leave judgment linked to above, the Supreme Court case turned solely on whether the Police acted lawfully in obtaining and executing search warrants obtained under s 198 of the Summary Proceedings Act 1961. When you read that together with the press release from the Crown, it is apparent that the Supreme Court has ruled the Police did not act lawfully. If they had, there would be absolutely no basis for excluding evidence obtained under those search warrants.

While I have read the suppressed decision, the above facts are able to be discerned completely from non-suppressed sources - the leave judgment and the Crown press release.

I am astounded by your 'beat the rap' comments, if they are to be read as inferring that people could properly be convicted where there has been unlawful conduct by the Police in obtaining evidence. That is not a country I would want to live in and, as much as I know of you, I doubt you would either.

Moreover, given the very serious nature of the threat we keep hearing of from those who have read the leaked affidavits used to obtain the warrants (see Adolf above), it can reasonably be inferred that the Supreme Court must have been pretty alarmed by the degree of unlawful Police conduct to be persuaded to throw out what has proved to be the central evidence in the case.

Having re-read your comment Chris, I should point out that, if the TSA was at all in issue, the leave question would have been "whether evidence gained pursuant to the TSA was admissible". The question of law on which leave was granted did not refer to the TSA, it solely refers to evidence gathered using search warrant obtained under s 198 of the Summary Proceedings Act. These are the 'garden variety' search warrants executed on a daily basis by the Police, not the super duper warrants that can be obtained to intercept communications under the TSA. What can be inferred to have happened to any evidence gathered under the TSA was that, because of provisions in the TSA, it became inadmissible the moment the Solicitor General declined his consent for charge under the TSA to be laid. There was no Court decision on that point, it simply followed from the S-G's refusal to grant consent. That can hardly be seen as any kind of legal chicanery on the defendant's part.

While you are right to infer that judges below differed in some respects, what counts now is the view of the Supreme Court. The Court has now spoken; case closed.

So, in summary, points to be inferred from careful observation of publicly available material:

1. Evidence, if any, that was gathered under interception warrants issued under the TSA became automatically unuseable on the Solicitor General's decision not to lay charges under the TSA;

2. Any remaining evidence gathered under garden variety warrants was obtained by unlawful Police conduct so serious that the Supreme Court was persuaded that the means were so seriously unlawful they could not be justified by the apparently serious ends the Police were pursuing.

Step 1 occurred without any imput from the defendant's counsel, while step 2 would have occurred entirely irrespective of any media campaign. Our courts are generally able to put media comment aside in making their decisions despite popular misconceptions.

Thank you, Justin, for your prompt and fulsome clarification of the SC's decision.

It does not, however, leave me feeling very happy about our justice system.

If what you say is correct, the Solicitor-General and the SC have delivered a series of judgements that have rendered practically all of the Police evidence inadmissable.

Now, in strictly legal terms, that might be perfectly kosher. But, as I note above, the essence of this case is not legal but political.

Seen in this light, the S-G's and the SC's actions are dangerous. They have prevented the New Zealand public from knowing what took place in the Ureweras between 2006 and 2007, and effectively allowed at least 13 of the accused to walk free.

When New Zealanders realise that the judiciary has denied the Crown its day in court, I suspect they will not be very happy.

One of the most important political benefits of our justice system is that it allows the public to arrive at its own judgements concerning the guilt or innocence of accused persons - along with the jury and/or the bench. Deny them that opportunity and they will become suspicious and mistrustful. The legitimacy of the system itself will fall under a shadow.

Paradoxically, what the SC has done is not even to the benefit of the accused. Many will say that they "got off" on a "legal technicality". The opportunity to clear their names in open court has been lost.

And if there really was a terrorist conspiracy - which only the timely intervention of the Police prevented from inflicting real harm on New Zealand society - then the persons responsible may end up escaping not only any punishment for, but even any scrutiny of, their crimes.

Lastly, I ask myself: If something similar should happen again, will the Police act with such alacrity? Or will they wait for the bodies to fall before intervening?

The Supreme Court has, I fear, sown dragon's teeth. Their judgement seems less wise than it does foolish.

I see it differently. The SC and the Solicitor General were performing the tasks demanded of them by the rule of law which demands that executive action be subject to judicial scrutiny. To achieve the outcome you advocate let's just consider what that would entail:

1. The Solicitor General would have to give consent to lay TSA charges when he was not satisfied that there was the evidence that the TSA requires him to be satisfied of. He would be breaking the law and his oath - an alarming prospect from our governments legal officer;

2. The Supreme Court would have to decide that, even though they were bound by the Evidence Act to exclude the unlawfully obtained evidence because of the seriousness of the Police impropriety, they were prepared to contravene the law and their judicial oath and put the accused on trial just to give them an opportunity to answer the charges in a public forum, albeit one involving an unfair trial.

So, you would advocate that our Solicitor General and the Supreme Court break laws and the oaths they have sworn to uphold, as well as completely subverting what we know as the rule of law.

Again, that's not any country I wish to live in. I think you should take a deep breath and ask yourself if you want the rule of law to be suspended at the whim of bureaucrats. This all feeds into what I see as your biggest misconception: that prosecutions ought to serve political and not legal ends. That is the preserve of the Gaddaffis and the Saddam Husseins of this world.

I want all prosecutions to be determined exclusively on legal and not political grounds. I am gobsmacked you appear not to agree. This is, after all, a democracy.

I also wonder quite how you define the rule of law. As I understand it, using the definition posited by Lord Bingham and which is widely accepted as the definitive exposition, the rule of law boils down to the proposition that executive action must be subjected to judicial scrutiny. I don't understand the rule of law to say simply that everyone must be put on trial, not matter how unfair or unlawful the conduct of the executive, simply so they can be judged by the court of public opinion. We got rid of that when we did away with public pillory in the stocks.

It is all to easy to bandy the 'rule of law' around as some cure all justification for your arguments, but it is another thing to actually understand what it means and entails in a modern democracy. I am not sure you do.

Chris Trotter, the most upsetting thing for me was the dirty, cowardly, disgusting performance how the police went about their duties on many of the Uruwera people, who, as the whole of Aotearoa saw, had nothing to do with the whole matter. The school children on their bus ! ! !Do you and agree?

"New Zealand is one of the world’s oldest democracies: a nation committed to the rule of law. The Urewera 17 (or, at least 13 of them) have escaped prosecution and possible conviction because of that commitment."

Ah.

I see.

A caring classless society turning the other cheek to the terrorists.

If you really must pen that sort of stuff to be read Chris you are socially obligated to provide a complimentary barf bucket.

a group could not be arrested until the crimes act was changed quickly one night in federal Parliament to change the offence from 'acts in preparation of THE terrorist act' to 'acts in preparation of A terrorist act' (my capitalisation)

Indulge my veering off a little ... Are the masses really sovereign. I thought Parliament was. And I don't quite see that Parliament represents the masses entirely as so many of the poor, weak and vulnerable are effectively disenfranchised and don't vote (at least when compared to the turnout of the blue rinse brigade). That is to say, the difference between Parliament and the Courts is that the former cares for the majoritarian interests while the latter must care for the interests of all who come before it, the minority included.

And the definition, unfortunately, is not my own. By and large it is not considered Whiggish. http://www.guardian.co.uk/books/2010/feb/07/rule-of-law-thomas-binghamhttp://www.guardian.co.uk/law/2011/sep/07/rule-of-law-tom-bingham

I would highly commend Lord Bingham's book to you. It is written for non lawyers interested in what the rule of law means in a modern society.

Perhaps a better use of police spies if there is a good use for them would be to say, 'Tama's going to be in such n such a pub this Saturday' then a couple of Kaumatua could be sent along to have a word over a few beers. Failing that a small unarmed group of respected souls might drop in on the dreaded camp (bringing some kai) for a natter. A regular visit would probably spoil the game. Or if charges need to be laid, keep it as low key as possible? Send a (supposed) doc officer to check the firearms licences? Macho 'counterstrike' role play by offenders and police has hurt people.

You have covered yourself in shame with this post, and your comments above, Chris.

Robert Winter and Justin have corrected you at every turn in far more eloquent terms than I could muster. So I will simply agree with Justin - that you appear to be willfully misconstruing the 'rule of law' and popular democracy as 'mob rule'.

We the public do NOT have a right to see inadmissable 'evidence', precisely because it is deemed by the courts to be not lawfully obtained for judgement by a public jury or court. Your interpretation Chris, would allow police to engage in fishing expeditions - searched for 'the smell of dope', and prosecuted for anything else the police can find under that excuse.

You have also consistently relied in your arguments Chris, on claims made in a police document illegally released (almost certainly by police, as they alone gain by smearing the defendants). The TRUTH of those police claims is untested by any court as yet (unless it was the ruled out 'evidence', in which case no-one can rely on it).

Your hysteria needs context Chris - lots of people in NZ run around with guns (plenty of them unlicensed), and some even make home-made molotovs. Lots of people have very sharp swords they play with at home too, but we don't call them all pyschopaths just because one nutjob ran amok a few years back with a samurai sword while on P. Even if their gun/sword play makes us uncomfortable. We need evidence of their intent to hurt someone - which is where the police case appears totally lacking.

Otherwise, by your standards, the entire Army should have been called out a few years back when there were hundreds of fearsome looking terrorists running round in the back blocks with swords and bows & arrows. They were called orcs and elves, and earnt a gong for Peter Jackson.

Time to apologise Chris - not for thinking the Urewera 18 might have been terrorists, but for assuming they were, and relying on police leaks for your assumptions.

I'm afraid, in this instance, Mad Marxist, it is necessary to interpret your pseudonym literally rather than ironically.

The above posting and most of the following commentary studiously avoids the hysteria with which I am charged. Indeed, it was written in a deliberately non-inflammatory style to try and avoid the sort of comment you have posted here.

It is still a source of deep disappointment to me that so many left-wing supporters of the Urewera 17 simply cannot acknowledge that there is more than one way to view the events of 15/10/07.

This intolerance of dissent, and the moral assumptions which lie behind it, are what drives individuals and groups towards the sort of activity which "Operation Eight" set out to quell.

The concept of the "rule of law" is not as simple as you clearly believe it to be. Which, I have to say, is surprising, coming as it does from someone who describes himself (at least in part) as a Marxist.

What was it Karl said: "The ideas of the ruling class are in every epoch the ruling ideas".

Ah, so you descend to ad hominem attacks again Chris, which I did not.

Your hysteria Chris, is in your bizarre and strident insistence that the mob should see all evidence - whether lawful or not - and judge for themselves. You are one step away from calling for public floggings. That is not hysteria Chris - it is analysis of your claims around evidence and trials. Not to mention your 'beat the rap' claim about the 13.

I made no claim about the rule of law, other than to note your view of it seems out of line with all commenters above.

I'm not intolerant of your views Chris - I just don't agree with them, and think your views have been shown so wrong you should apologise for the claims you have made, and still make (beat the rap, explain the guns comrades, etc).

You still dodge the issue of innocent until proven guilty, not just by leaked police documents you rely on.

"Your entire line of reasoning is a disgrace to the traditions of a enlightenment liberalism, to justice and the ideal of a fair go, of word being a person’s bond, the imperatives of holding oneself to high moral and ethical standards, and owning up to one’s misdeeds. It is fundamentally a testament to the atrophy of these characteristics in Pākehā culture. As a society we should mourn the loss of these qualities, and adherents of this mean and gutless view should be ashamed of themselves."Lew Kiwipolitico

Insider, nobody involved in this so-called radical plot is guilty of anything more than your average corporate paintballer. Nobody. Nothing.

Happily Chris - your bleat for tolerance on the left for differing views is as thin as your arguments.

I note you still haven't addressed a single point I raised. Which is why people get tetchy with you - not since Rodney Hide have I seen someone dodge issues so quickly when their argument is weak.

Perhaps the police claims about the Urewera 18 are all true? Perhaps not. Perhaps you could ponder how you would feel if police made a bunch of dubious and highly defamatory claims about you in public?

Solidarity is not unquestioning allegiance - but it is certainly not stabbing comrades just because the police *claim* they are dangerous.

Chris, I'm unsure what you mean when you write: "And, of course, it is precisely in defining who is, and who is not, to be included among "the people", i.e. in determining the exceptions to the rule of law, that democracy is at its most dangerous".

It seems like you are making a point based on Agamben's "State of Exception" but to do so would seem to be starkly in contrast to what you are trying to argue. Could you explain a little more.

Good to be back on this topic, Chris. The propaghanda campaign that I saw from day one was best orchestrated by the police. For example, the happenstance of TV3 reporters accompanying the smashing of windows and doors at the 128 radical social centre and the talk of napalm.

Napalm! That's some classic kiwi comedy there and its the term that comes out so regularly on the blogs. But it has long been absent from the discussion since. And based on those first few days I reckon that appealing to the liberal, rather than radical arguments is fair game.

I know TV3 has an office in Wellington, but I don't think that it is opposite the Abel Smith St house. If it is it is, and was, an unmarked office that looks suspiciously like a house. Check it out on GoogleEarth.

You reckon it was hunters that found some place that napalm had been used on, eh? Or was this the molotovs? Or was this petrol and some styrofoam? Geez, sounds like I've got a molotov in the basement then... don't go telling the news people though, but perhaps they live across the road from me too! Just kidding, Chris, I don't mean to be rude or nothing. have you seen the effects of styrofoam and gas burning? I haven't. Does it do some damage? Does the foam melt and burn like when you throw some plastic on the fire? Or is it worse? I was really just trying to say that if accusations of Napalm were coming at me, I'd feel compelled to get the best lawyers i could.

Funny (queer funny, not haha) though that the Norwegian was a far-right fanatic - not to say that the lefties don't get worked up - but just sort of seems like you might have some things to say about the lack of investigation into the right, when the Greens and Unite seem to even be getting surveilled.

Well make sure you let me know when it comes up: ken_slugg@hotmail.com - it'd hope you'd address Butler and Spivak's discussion, with or without talk of colonialism, but that's only a hope - I don't want to select from your mind as if it were a pick 'n' mix candy store now do I?

Oh and Chris, the TV3 Wellington office is not across the road. It is a few blocks away from 128. Perhaps they drove past on the way to work? Is this the new story? Just in time to get that nice shot of the window breaking in on all those dangerous terrorists. Deep in the forest, indeed.

So ... After yesterday's news, are you finally conceding that what you wrote in this blog-post was wrong, Chris? The Supreme Court did not rule on intercepted communications but about s198 search warrants as I pointed out to days ago. Looks like the cops have A LOT of egg on their face right now. Running illegal surveillance operations up and down the country. And you are still sticking up for the cops? One more chance to redeem yourself, Chris.

". Looks like the cops have A LOT of egg on their face right now.".....It looks as though the attorney general is working on the problem that let them beat the rap (there will be howls of "police state" etc of course but the proletariat like a bit of security).

Stuff:"The type of secret filming police used in the investigation of alleged military-style training camps in the Ureweras in 2006 and 2007 fell into a legal hole that Parliament had failed to fix, it can now be revealed.

"Parliament has not however provided legislative authority for covert filmed surveillance, despite recommendations that it should do so," Dame Sian said. .....and what were they doing?

"The outcome was that a majority though the evidence could be used against those facing the more serious charge of taking part in an organised criminal group - Tame Iti, Emily Bailey, Te Rangikaiwhiria Kemara and Urs Signer.

That allegation was refined this week in an amended charge that specified the objectives of the group were one or more of: murder, arson, intentional damage, endangering transport, wounding with intent, aggravated wounding, discharging a firearm, using a firearm against a law enforcement office, or kidnapping.

The four also face charges of having weapons, including shotguns, military-style rifles and molotov cocktails. "

"That allegation was refined this week in an amended charge that specified the objectives of the group were one or more of: murder, arson, intentional damage, endangering transport, wounding with intent, aggravated wounding, discharging a firearm, using a firearm against a law enforcement office, or kidnapping."

Many people I talked to who skimmed the article thought they were charged with all of these. But it is just like the Dom Post to list all of these as a teaser. Its simply bad journalism. It is much in the same manner as they published all of these intercepted sound bites that they didn't attribute to anyone in particular so that all were tarred with the same brush.

So while I doubt their intentions could have been simply 'endangering transport' - by making the #14 to Roseneath five minutes late in rush hour, I suppose - I would also doubt they have any evidence that they planned to murder. But hey, why not put that first on the list. If the cops had any evidence they'd have found a way to leak it by now, considering the way the documents have landed in the public forum so far.

"That allegation was refined this week in an amended charge that specified the objectives of the group were one or more of: murder, arson, intentional damage, endangering transport, wounding with intent, aggravated wounding, discharging a firearm, using a firearm against a law enforcement office, or kidnapping.".....oh so of the 4 people 3 may be planning to disrupt traffic and the other rotten bugger: murder, arson, intentional damage, xxxx, wounding with intent, aggravated wounding, discharging a firearm, using a firearm against a law enforcement office, or kidnapping?

I think you've misread the quote. Which is exactly what the point of it being reported in this way was: willful, eyebrow raising misrepresentation of the same kind as the now buried napalm headlines.

read: "the objectives of the group were one or more of..." - I hope I don't need to explain what that means to you.

OK, lets go, I will explain it: it means that the whole group are charged with a minimum of one of those aims. It does not mean that all are charged with all of them, or that all are spread across all of them or anything else like that. it only means that they are all charged with a minimum of one. They could be charged with more than one, but it is not clear on this. Suffering succotash.

Now as to Lockett: he is not part of the four, is he? Unless he goes by some other name...